Janice Stimac v. Frank Maletz, M.D. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 169)

On November 3, 2010, Dr. Frank Maletz and Cross Roads Orthopedic Subspecialists, Inc. filed a motion to dismiss the claims against them in the plaintiff's revised complaint on the ground that the plaintiff failed to obtain and attach a written opinion from a similar health care provider as required by § 52-190a(c).  On November 12, 2010, the plaintiff filed an objection to the motion to dismiss.   The dispositive issue regarding the motion to dismiss is the issue of waiver.

FACTS

On February 20, 2010, the plaintiff, Janice Stimac, filed a complaint alleging medical malpractice against Frank Maletz, M.D., Cross Roads Orthopedic Subspecialists, LLC (Cross Roads), Patrick Doherty, M.D., Sound Medical Neurosurgical Associates, Louis Mazzarelli, M.D., Tibor Kereshi, M.D., Lawrence & Memorial Hospital, Inc. (Lawrence & Memorial), Ocean Radiology Associates and Southeastern Connecticut Imaging Center, LLC. In her revised complaint filed on June 18, 2010, the plaintiff alleges that the defendants caused her various injuries as a result of the care and treatment she received related to a lumbar fusion surgery that took place on October 25, 2007, as well as her aftercare.   She seeks monetary damages and any other relief that law and equity may provide.

Count one is directed against Maletz and alleges the following facts.   At all relevant times Maletz held himself out to the general public as an orthopedic surgeon licensed to practice in Connecticut.   He acted as an agent, servant, employee or principal of Cross Roads or Lawrence & Memorial.   On or about October 25, 2007, and continuing until on or about February 27, 2008, Maletz undertook the care, treatment and supervision of the plaintiff's orthopedic surgical needs, including the treatment for pain and discomfort requiring a lumbar decompression and fusion with pedicle screws.   As a result of the care, treatment and supervision by Maletz, the plaintiff suffered injuries.   Maletz caused the injuries by failing to exercise the degree of care and skill ordinarily and customarily utilized by surgeons and providers of medical care.

Count two is directed against Cross Roads and alleges the following facts.   Beginning on or about October 25, 2007, and continuing until on or about February 27, 2008, Cross Roads undertook the care, treatment and supervision of the plaintiff's orthopedic surgical needs, including treatment for pain and discomfort requiring a lumbar decompression and fusion and with pedicle screws.   As a result of the care, treatment and supervision by Cross Roads, the plaintiff suffered injuries.   Cross Roads caused the injuries by failing to exercise the degree of care and skill ordinarily and customarily utilized by surgeons and providers of medical care.

Pursuant to General Statutes § 52-190a, the plaintiff attached to her complaint a certificate of good faith by her attorney and a written opinion of a board certified neurosurgeon that concluded that Maletz deviated from the standard of care in his treatment of the plaintiff.

On February 24, 2010, Maletz and Cross Roads filed their appearance.   On the same day, they filed a motion for a thirty-day extension of time to file a responsive pleading, which the court granted.   On April, 21, 2010, Maletz and Cross Roads filed a motion for extension of time, up to and including July 23, 2010, in which to file a responsive pleading, which the court granted.   On July 23, 2010, they filed a motion for extension of time, up to and including August 6, 2010, in which to file a responsive pleading, which the court granted.

DISCUSSION

A party who files a medical malpractice action is required to file both a certificate of good faith and a written opinion from a similar health care provider stating “that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”  General Statutes § 52-190a(a).  “A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim ․ However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a(c).  Dismissal pursuant to this section is a statutory remedy ․” Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).

Maletz and Cross Roads argue that the plaintiff has failed to attach to her complaint a supporting written opinion authored by a similar healthcare provider in compliance with the requirements of § 52-190a.   Specifically, they argue that the neurosurgeon who authored the plaintiff's opinion letter is not a similar healthcare provider as defined under § 52-184c(c) because the neurosurgeon is not a board certified orthopedic surgeon like Maletz.

The plaintiff counters by arguing that the motion to dismiss is untimely, therefore, Maletz and Cross Roads have waived their right to bring a motion to dismiss pursuant to § 52-190a.   Specifically, she argues that a motion to dismiss pursuant to § 52-190a implicates personal jurisdiction, therefore, Maletz and Cross Roads have waived their right to file a motion to dismiss because they have not filed their motion within thirty days of the filing of their appearance.   Additionally, she argues that the thirty-day time limit is set by Practice Book § 10-30 and cannot be extended by a motion for extension of time.   Also, she argues that they waived their statutory right to dismiss on equitable grounds.   Finally, the plaintiff argues that the author of her opinion letter is a similar healthcare provider as defined under § 52-184c(d)(2).

“[T]he issue of whether a plaintiff has complied with § 52-190a implicates the court's personal jurisdiction over the person of a defendant.” ¹  Sanabria v. Ashmead, Superior Court, judicial district of New London, Docket No. CV 09 5010404 (July 20, 2010, Cosgrove, J.) (50 Conn. L. Rptr. 199, 201).  “Practice Book § 10-32 provides:  ‘Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30.’   The grounds of ‘improper venue’ or ‘insufficiency of process' or ‘insufficiency of service of process' are specific grounds to challenge a court's jurisdiction over a particular person.  ‘[Practice Book § 10-30] specifically and unambiguously provides that any claim of lack of jurisdiction over the person or an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6, formerly § 112.   Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court.’  (Emphasis in original.)  Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).  ‘Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost.’  Foster v. Smith, 91 Conn.App. 528, 536-37, 881 A.2d 497 (2005).”  Sanabria v. Ashmead, supra, 50 Conn. L. Rptr. 200.

“The sufficiency of a § 52-190a opinion letter is a threshold question that ought to “raised and addressed in an expeditious fashion ․ [T]he Practice Book's thirty-day time frame for raising these issues is appropriate.   This time frame is triggered by an appearance on behalf of the defendant.   Without such a limiting time frame a defendant could sit on his rights, expend the time and energy of his opponent and the court on pleadings and motions practice and then at the last hour raise his grounds for dismissal.   Accordingly, ․ claims challenging the adequacy of a written opinion pursuant to § 52-190a are waived if not raised in the manner specified in § 10-32.”  Sanabria v. Ashmead, supra, 201.

Maletz and Cross Roads have not filed their motion to dismiss in a timely manner.   On February 24, 2010, Maletz and Cross Roads filed their appearance, which triggered the start of the thirty-day time frame.   On the same day, they filed a motion for extension of time for an additional thirty days in which to file a responsive pleading to the plaintiff's complaint, which the court granted.   On April 21, 2010, Maletz and Cross Roads filed a second motion for extension of time, up to and including July 23, 2010, in which to file a responsive pleading, which the court granted.   On July 23, 2010, they filed a third motion for extension of time, up to and including August 6, 2010, in which to file a responsive pleading, which the court granted.   On November 3, 2010, well after the extended time frame had expired, Maletz and Cross Roads filed their motion to dismiss.   Since Maletz and Cross Roads filed their motion to dismiss after their extension of time ended they have waived their right to challenge the court's personal jurisdiction over them.

The motion to dismiss is denied.

Cosgrove, J.

FOOTNOTES

FN1. The two decisions regarding General Statutes § 52-190a that the Supreme Court released after Maletz and Cross Roads filed their motion to dismiss, Plante v. Charlotte Hungerford Hospital, 300 Conn. 33 (2011), and Bennett v. New Milford Hospital, Inc., 300 Conn. 1 (2011), do not address the issue of whether § 52-190a implicates personal jurisdiction..  FN1. The two decisions regarding General Statutes § 52-190a that the Supreme Court released after Maletz and Cross Roads filed their motion to dismiss, Plante v. Charlotte Hungerford Hospital, 300 Conn. 33 (2011), and Bennett v. New Milford Hospital, Inc., 300 Conn. 1 (2011), do not address the issue of whether § 52-190a implicates personal jurisdiction.

Cosgrove, Emmet L., J.